July 1, 2009

Everyone's talking about Ricci v. DeStefano, the affirmative action case. And with good reason; it's interesting, ground-breaking, and has implications for the Sonia Sotomayor nomination (since it was her ruling that was overruled by the Supremes).

But one thing that surprises me a little bit is the lack of action in the case of Salazar v. Buono. I thought it would be the big religion case of the term, but the Supremes kicked it over to next year. Look for oral argument to be scheduled in late October or maybe early November and don't expect a ruling until the end of next year's term.

The case involves a cross that you can (or rather, could) see on the top of a rock formation called "Sunrise Hill" while driving along Interstate 15 between Barstow and Las Vegas. Mojave National Preserve terminates within yards of the interstate and Sunrise Hill is located within the Preserve. The picture above is a government photograph of the cross taken before the lawsuit was filed.

Originally, the land was owned by a private person, and he put up a large cross that was visible from the road as a memorial to soldiers killed in the Great War. (No problem, by the way. Private land, private display, that's free speech.) Then, the land passed to the control of the Federal government. It was initially administered by the BLM and under President Clinton, converted to a national park. During this time, vandals would periodically destroy the cross or portions of it, and volunteers would come and rebuild it.

In 1999, a Utah man asked to erect a Buddhist shrine next to the cross, and the National Park Service refused that request. Then, this lawsuit was filed by the ACLU on behalf of a variety of people, challenging the presence and maintenance of the cross as a violation of the Establishment Clause. Congress responded to the lawsuit by passing a private law, swapping a one-acre parcel including the cross for a five-acre parcel elsewhere within the Preserve, so as to return the land to private status.

Presently, the cross is concealed under a tarp on orders of the Ninth Circuit, which ruled that its presence is an Establishment in violation of the First Amendment. However, every year at Easter, volunteers hike out to the cross, take the tarp down, hold a Christian religious service, and then the tarp is put back up (whether by the volunteers or Federal employees is not clear to me). The National Park Service rules technically forbid this, but in practice, the park rangers tolerate it because it is a non-violent and transitory use of the public's land.

Establishment Clause jurisprudence in its current form is in a terrible, nearly indecipherable mess. There are three ways of looking at Establishment Clause questions:

First, there is the Lemon Test. Three questions have to be answered are: First, does the government action have a secular purpose? If so, does the governmental action neither inhibit nor advance religion? If so, does the governmental action avoid creating an "excessive entanglement" between government and religion? If so, the action is Constitutionally permissible under this almost forty-year old case. Lemon has been criticized for the subjective nature of its three-part test, especially the last prong, but it has never been overruled and is often applied to governmental activity. Debatably, it has been narrowed by another case called Agostini v. Felton, which applied a simpler form of the Lemon test, effectively omitting the third prong.

Second, there is the "endorsement" test, which had been favored by Justice Sandra Day O'Connor during her service on the Court. The idea was originally articulated in her concurring opinion in the case of Lynch v. Donnelly. This asks whether a reasonable observer would conclude that the government was endorsing a particular religion or had an intent to do so. Intent and endorsement, in turn, are inherently fact-based inquiries, meaning that under this test, there is no bright-line rule but rather a case-by-case analysis. As always with Justice O'Connor's opinions, the idea sounds reasonable and useful, but fails to provide a clear rule that would guide courts and legislatures.

Finally, there is what has been called the "coercion" test, which was fleshed out by Justice Anthony Kennedy in Allegheny County v. ACLU of Pittsburgh, again in a concurring opinion. (Both Lynch and Allegheny County were cases involving challenges to nativity scenes.) A "coercion" analysis would presume that governmental activity with respect to religion is valid, unless the challenger can demonstrate that the government support of religion is so strong as to constitute the creation of a state church, or if the governmental action compels someone to either participate in or support a religious activity against their will. This is a relatively narrow reading of the Establishment Clause, but it also suffers from the same subjectivity problems that the others do -- there are examples of judges (and Supreme Court Justices) purporting to apply the same version of this test and reaching different results.

Here's how I think we'll see Salazar v. Buono break down. I predict that by a 6-3 decision, the government will win, and the cross will be allowed to stand, uncovered.

Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, Alito, and Sotomayor will rule that because the cross was originally on private land, the government took control of it "as is" and could maintain the land in the condition in which it was found. The land swap was a rational and appropriate way for the government to realize and advance that objective, and to preserve a monument that has acquired historical significance. Because it was unquestionably a valid form of speech when it was created, it is okay now. There will be much talk about the cross' "mere presence" on government land as not conveying a message to a reasonable observer that the government is endorsing Christianity, with painstakingly researched factual references to religious symbols appearing on other sorts of Federal land or buildings throughout history.

While I am pretty confident they will agree on this reasoning and this result, I am much less confident that they will resolve the tension and confusion in the jurisprudence. They will not articulate a single standard for the evaluation of Establishment Clause cases. Nor is it entirely out of my mind that all six of these Justices are practicing Catholics.

Justice Thomas will write a separate concurring opinion, arguing that the original intent of the authors of the First Amendment was not to prohibit the display of a cross on publicly-owned land, but rather only to prohibit the creation of a mandatory participatory religious institution by the Federal government. Whether Justices Scalia and Alito will join this opinion is a good question, but this narrow originalist opinion will get no more than three votes.

Based on my reading of this recent case, Hein v. Freedom From Religion Foundation, I think we will see a more foreboding signal from the "conservative" Justices. Sometimes, the Court questions a litigant's "standing to sue" as a way of ducking a controversial issue. The Pledge of Allegiance case is a really good example of that -- rather than answer the question of whether requiring a schoolchild to recite the modified Pledge of Allegiance, incorporating the phrase "under God," is an Estblishment, the Supremes said that the plaintiff didn't get to ask that question because the plaintiff was a non-custodial parent of the particular schoolchild in question. But there is also the question of whether anyone can challenge a purported Establishment in the first place. Justices Scalia and Thomas would effectively deny any individual or advocacy-group litigant the right to file a lawsuit against the Federal government alleging the Establishment of a religion.

Moreover, the flexible "coercion" test appears to be gaining strength, because that was the basic reasoning used by Roberts, Kennedy, and Alito in the above case. They would look at the plaintiff in Salazar v. Buono and ask, "So let's say that the government really is endorsing Christianity here. So what? How does that hurt you? You don't have to be a Christian just because the government allows private parties to maintain this cross in the Mojave National Preserve." If some or all of these Justices can be persuaded that there is no concrete injury other than an infinitesimally small amount of tax money that goes in to paying the salaries of park rangers who look the other way at the cross, and they want to avoid a decision on the merits using the traditional Supreme Court trick of challenging standing rather than ruling on the merits, they have the ability to join Scalia and Thomas in saying that taxpayer standing is not enough in this case. If that point of view can command five votes, this case will not just erode but eviscerate the Establishment Clause as a meanginful part of the Constitution* than the narrower exception that I'm predicting here. I don't predict that, though; they could have done it in Hein and didn't.

Justices Stevens, Ginsburg, and Breyer will dissent, arguing that land swap law a tissue and determine that Congress' intent in dong the land swap was not to net four acres of land but rather to preserve the cross. This, the dissenters will argue, demonstrates an intent by Congress to promote and protect the cross as a religious symbol, which therefore proves that it is indeed an Establishment of religion. They will also mention that they disagree with the notion that the plaintiff lacks standing.

Personally, I don't see how the presence of a large cross, visible from the Interstate, on Federal land, could be reasonably seen as anything other than a governmental endorsement of the Christian religion. The refusal of the government to allow non-Christian religious symbols to be placed there adds a lot of weight to that understanding of the cross' presence. Finally, there is the argument that the cross is a "generic symbol of death and memorial" -- while I concede that there is indeed something to this concept (an idea to which I was initially very cool) in this case, considering the use to which the cross is put, I would argue that this cross, in this context, in the present day, has become a religious symbol and a focus of religious activity. So I would join what I anticipate will be the dissent.

This should surprise regular Readers of this blog not at all. But, we'll have to wait until after the first Monday in October to get any hint of how right I am.

* This would not be the first time that the Supreme Court has, through its power to interpret the Constitution, eroded its terms into near-oblivion. For instance, the Privileges and Immunities Clause is basically worthless as an assurance of individual rights thanks to The Slaughter-House Cases (1873) 83 U.S. 36.

3 comments:

Wasn't the use as a memorial? So if there is a secular symbology, it would seem to fall under that.

One argument against is that "It wasn't secular then." I wasn't around then so I don't know. One question I'd have is whether the landowner was Mormon or not. If so, then it likely was secular in intent. If not, it's more of a gray area. I'd need to know more about the history of the white cross (I never realized it went back that far).

I'm not sure I understand the argument about present-day, though. Are the volunteers that keep putting it back together organized Christians? Or is it just that nobody knows that it was originally put up for the Great War and thus it is religious by default? If I saw it there, though, I'm not sure if I would assume that there is a giant church behind the rock or if somebody fell off the cliff.

Yes, its original use was as a war memorial; that much is pretty clear from the Court record. Maintaining a war memorial is a secular and governmental activity obviously not prohibited by the Establishment Clause. The crosses, stars, and crescents on the gravestones of soldiers at Arlington National Cemetery, for instance, do not raise any Establishment Clause problems in my mind.

I also bear prominently in mind the point from a few weeks ago about the cross not being a symbol of Mormon faith, and I haven't found any information about whether the original owner of this land was Mormon.

But what the cross is used for today is a place to hold an Easter service. The volunteers who travel there and maintain it are evangelical Christians organized from a handful of SoCal churches. For me, the property's contemporary use is more important than its use in the 1930's.

Yeah, that last bit is the killer. Whatever its original intent, it's been embraced as a religious symbol. I'd have to think on it more before coming to my final "ruling", but I can definitely better see where you're coming from now.

Countup to our Destruction

Traffic Report

Referrers

You Are Visitor Number:

About Me

One wife, two dogs, two cats. Childless by choice.
Attorney (licensed in California and formerly in Tennessee). Aspirations to the bench.
Likes: professional football, cooking, good wine, bad science fiction movies, long walks on the beach.
Dislikes: People who struggle to accomplish tasks of ordinary difficulty, most country music, willful ignorance, magical thinking, and weak-ass barley pop beer.

Atheism FAQ

Transplanted Lawyer FAQ:

Q: Why do you write under a pseudonym? And why did you pick “Burt Likko” as that pseudonym?A: If I were writing under my real name, I might have to be more circumspect in offering provocative opinions. “Burt Likko” is an inside joke left over from an old friend of mine’s name being mangled by a careless person over the phone. If you don't get the joke, you aren't intended to. Move along, please.

Q: Where have you been transplanted from?A: I started out in California. Then I went to Tennessee. Then I came back to California.

Q: What’s the “Potted Plant” thing all about?A: The phrase “not a potted plant” comes from a famous quip made by a prominent lawyer named Brendan Sullivan while representing Oliver North, before a Congressional hearing in the late 1980's. It stuck with me.

Q: Why do you write such long posts?A: Not all my posts are long. But when I start exploring an idea, I want to do it completely.

Q: How much time do you spend writing all this stuff?A: It varies, of course. But probably less time than you think; I’m both a glib writer and a fast typist.

Q: Why do you write so many posts?A: I like it.

Q: I like to read your new stuff every day. But some days you don’t write anything at all!A: That’s not a question.

Q: Jeez, you really are a lawyer. Why don’t you write every day?A: Some days I don’t feel like it. Some days I don’t have time. Other days, I do, and on those days, I write.

Q: I don’t find the [insert subject here] posts interesting.A: So don’t read them. By the way, this is a list of “Frequently Asked Questions,” and that wasn’t a question.Q: Why didn't you write about [insert subject here]?A: There might by any of a number of reasons for that. Likely candidates include: 1) I haven't gathered enough information about [subject] to feel I have anything intelligent to say about it, 2) [subject] does not interest me at the moment, 3) I haven't found the time to write about [subject], or 4) pretty much everything that's needed to be said about [subject] can be found easily elsewhere. The internet is a big place and you should be able to easily find some discussion or coverage of [subject] if you can't find it here. I reject any moral judgments, whether explicit or implicit, concerning any failure, whether real or imagined, whole or partial, to comment on [subject]. If you think [subject] requires commentary that you do not believe is forthcoming here, well, Blogger and other similar services are 100% free and there is nothing to stop you from commenting on it yourself in your own forum.

Q: You’re not really an atheist, are you?A: I swear to God I am.

Q: Are you a member of the ACLU?A: No.

Q: Are you a member of Americans United for Separation of Church and State?A: No.

Q: Why don’t you refer to your wife by name?A: For the same reason I don’t refer to myself by name.

Q: What do you mean by “childless by choice?”A: I thought that was pretty obvious. I do not want to have or raise children.

Q: How much of this stuff about yourself is true?A: I don’t see how that matters. To the vast majority of you, I’m a pseudonymous blog author whom you will never meet or interact with. To those Readers, my personal life just isn’t all that big an issue.

Q: So why do you write about personal stuff at all?A: Because some of my friends and family do read the blog and for them, it’s a good way to stay in touch with me. If you don’t know me personally, then I would expect that my day-to-day personal affairs are uninteresting to you.

Q: Do you make money off this blog?A: Not a penny. Nor am I interested in doing so. The blog is a labor of love, not a commercial venture.

Q: Can I post on your blog?A: Maybe. We should talk (or e-mail) first, but it’s not out of the question.

Q: If I don’t want to comment but I have something to say about what you wrote, what can I do?A: Send me an e-mail. I won’t reprint our conversation without your permission and if I do reference what we’ve discussed, it will be in such a way that no one could possibly figure out who you are.

Q: Why do you delete comments?A: For the most part, I don’t. I do not delete comments for the reason that they reflect a point of view with which I disagree. But I do delete comments that 1) contain advertising or spam, 2) are overtly abusive, or 3) are apparently so unrelated to the topic of the post as to be non-sequiturs. And I reserve the right to delete any other comment for any reason that I, in my sole and complete discretion, choose to. If you believe a comment has been deleted wrongfully, I encourage you to rephrase your comment with the above in mind and try again.

Q: I hate you and think you’re an awful person because [insert reason, usually based on a political disagreement, here]. So why won’t you let me say so?A: It’s your right to disagree with me and even to hate me – but that doesn't make you special. The manner in which you express yourself is different than the viewpoint which you express. Respectful, intelligent disagreement is welcome. Trolling is not.

Q: Jesus Christ is my lord and personal savior. Can I give you my testimony?A: No.

Q: What would convince you that God was real?A: I strongly doubt that you can. Please don't try; I find such efforts tiresome.

Q: Why do you refer to God as Jehovah?A: It's the proper name of the diety most people are referring to when they talk about "God." I use the name despite the Biblical injunction against doing so because I do not believe in or fear magic spells or incantations in any form.

Q: So you were a Catholic, is that why you don’t believe in God anymore?A: What exactly does that question imply? As far as I can tell, Catholics are every bit as likely as Protestants to be morally good people. If you can understand why I would reject the Roman Catholic Church’s particular flavor of mumbo-jumbo, then it shouldn’t be that big a leap for you to understand why I disbelieve in your church’s mumbo-jumbo, too.

Q: Evolution is just another kind of religion. Believe in it if you want, but it isn’t real.A: You’re entitled to your opinion, of course. But you’re profoundly incorrect. A “religion” by definition involves the relationship of a person with at least one supernatural entity. Evolution, by its very terms, eschews reference to supernatural causal factors with respect to the question of the manner in which biological organisms speciate over time. Evolution enjoys overwhelming support in the forms of the fossil record, species diversity, and the ongoing, observable phenomenon of speciation.

Q: Speciation has never happened.A: Yes it has.

Q: Where do you get your pictures?A: Generally from Wikimedia Commons, XKCD or FARK.

Q: Why the Green Bay Packers?A: Because my family’s roots are in Wisconsin. I’ve rooted for the Packers since I was a little boy.

Q: I think you’re really a [something].A: Oh.

Q: Why do you post recipes?A: Life is lived best with good food and good wine enjoyed amongst good friends. When I cook, and it turns out well, I like to share the joy that brings. If food, cooking, and recipes do not interest you, skip the posts about them.

Q: You really hate Sarah Palin, don’t you?A: No, I don’t. I admire that she achieved high political office at a relatively young age. She has charisma above and beyond her good looks and seems to be a basically likeable and appealing person and would probably be a great dinner guest. I respect that she is protective of her family. But she’s a) too socially conservative for my taste, and b) not been able to demonstrate a thorough enough grasp of public policy issues I care about to be the kind of President I would like.

Q: Do you think this blog got you dooced out of your job in Tennessee?A: It certainly didn’t help. But I've no regrets about that.

Q: Why do you hate Tennessee so much?A: I don’t hate Tennessee at all! Tennessee had some really good things going for it. Its politicians have figured out how to provide for an adequate state government without any income tax -- California should take a lesson from them. It’s beautiful and green. Housing was affordable. We made and still have some very good friends. I think it's something of a disadvantage there to not be (or at least claim to be) a Baptist, though. And I got a great offer to return to California.

Q: If you could be any kind of a tree, what would it be, and why?A: Anything in a national park. That would minimize my chances of being turned into furniture.

Q: For someone who claims to not have a television, you sure seem to know a lot about what’s happening on TV.A: The internet is a remarkable thing.

Blogged

Legal Stuff

You may freely quote portions of the writing here in any non-commercial context, provided that attribution to this blog is given. By commenting on this blog, you agree that your comments are also published under a similar license. Full text of the limited copyright license may be reviewed here. No portion of this blog is commercial in nature in any fashion, nor operated for profit. Absolutely no advertising or other commercial activity is permitted or authorized herein. Any commercial advertisements placed in comments will be promptly deleted by the administrator. This blog uses tracking cookies. Side effects of repeated readings of this blog may include disagreement with your existing world view and a frustrating inabilty to pigeonhole the author as "liberal" or "conservative." All copyrighted material reproduced herein appears under a claim of fair use. Nothing herein constitutes legal advice, in any state; those seeking legal advice should consult with an attorney licensed to practice law in the appropriate jurisdiction. All opinions expressed in the primary text of this blog are solely those of the author and not of any other person or entity. No guarantee made of updates at any rate of frequency or periodicity. All statements of fact in this blog are derived from sources reasonably and in good faith believed to be true and accurate. Author not responsible for any harm arising from following anything construed as advice herein. No anonymous comments are permitted. Author reserves the right to delete any and all comments at his sole and complete discretion. Some posts are written in advance of posting and some posts are edited after publication for readability and correction of grammatical mistakes. An erection lasting more than four hours is a serious medical condition which requires immediate medical attention. Thank you for your cooperation and always remember that the Computer is your friend.